OUTA dismisses threat of legal action against e-toll defaulters

20 Mar 2016

“Threats by the Electronic Tolling Collection (ETC) through its contractor ITC-Business Administrators to summons a ‘selection of motorists’ with high outstanding e-toll bills, risks sinking SANRAL’s entire e-toll ship through the collateral challenge that will ensue from even a single attempt at prosecution or summons against an OUTA member,” says Wayne Duvenage, chairman of Organisation Undoing Tax Abuse – OUTA.

Responding to Wednesday’s statement by Mark Ridgeway of ETC, Duvenage says; “Our e-toll defence umbrella has one objective – being that not a single motorist or business within our member base will be successfully prosecuted by SANRAL or its agents. Not even one. We have been preparing for this for years, and will not pull punches in our defence of motorists who give us the mandate to defend them from SANRAL’s abusive, irrational and unlawful e-toll scheme.”

“We have lined up technical, administrative and other significant defences and will subpoena everyone from Nazir Alli, Jeff Radebe, the chairperson and treasurers of certain trusts, whistleblowers, the board members (past and present) of Sanral and many others to come and testify. We have damning evidence of unlawfulness and irrationality beyond imagination and it is about time that these nonsensical threats are put to bed, once and for all,” says Advocate Ivan Herselman, Director of Legal Affairs at OUTA.

In September 2013, the Supreme Court expressed that it cannot rule on the legality of the introduction of e-tolling until such time as a motorist is summonsed for non-payment, at which time a collateral challenge can be launched as a defence. A collateral defence obviates the technicalities in Administrative Law, which allowed SANRAL to escape last time, and OUTA will bring previous court evidence gathered, past judgments against SANRAL on their unlawful conduct as well as significant matters which have recently arisen, into this case.

According to Advocate Ivan Herselman, OUTA will also be pursuing cost orders against ETC and / or SANRAL, for any frivolous litigation against its members. “This is purely an intimidation tactic. If ETC are stupid or unfortunate enough to summons a member of OUTA’s, they can expect to pay the price for pursuing a lawsuit they should have known to be weak in legal merit,” said Herselman.

Ridgway also claimed that non-payers are in “the minority,” which is absurd in that SANRAL’s own collection figures disproves this statement, with less than 25% of their required revenue being achieved. Even Mr Ridgway himself in November 2015 indicated the massive extent of the public’s refusal to pay, when Ridgway said that 81 percent of the total discounted debt of R5.9 billion was owed by 17 percent or 518 000 account holders.

Ridgway also stated that they will not be “listing” persons, but vehicles, and will be doing so to add an encumbrance of e-toll debt on vehicles to make it more difficult to sell the vehicle. ETC indicated that it might have to get a court order to apply the encumbrance.

“This is ludicrous,” says Duvenage. “Vehicles cannot accrue toll fees, owners do. ETC’s delusional claims of a functioning ‘vehicle listing’ process and its imagined ‘coordination’ with the motor industry is complete fabrication. The e-tolls scheme has been widely rejected and condemned by every formal sector of the motor industry. The used vehicle trading industry will come to a complete halt, should outstanding e-toll bills be used as an encumbrance to trade. The pace of used vehicle dealing happens within hours, whilst the e-toll query / dispute resolution mechanisms is grossly inefficient and will have disastrous consequences to this industry. There is no law to effect this and no industry body that will risk the reputation and business damage that would come from directly supporting the scheme or its collection efforts,” said Duvenage.

We feel sorry for those who are being intimidated and bullied into paying, since it’s unlikely that they will ever see that money again, as all the money collected goes straight to SANRAL’s collection process, and nothing is going toward financing the roads. This is the last kick of a dying horse, in a desperate attempt of survival, which will not stand up to serious challenge.

Furthermore, we now have research showing that Sanral have overpaid for the Gauteng Freeway upgrade by over 320%. This odious debt is another element that will weigh heavily in OUTA’s defence against SANRAL’s abusive e-Toll scheme.

OUTA takes umbrage to Ridgway comments that “civil action will not be taken against all non-payers, but only towards those who have, through their behaviours, shown that they refuse to pay and comply,” and “We’ve seen that once we inform people of that [civil action and vehicle listing] they generally change their minds, some of them, and come to us to make an arrangement to pay.” This means that ETC are admittedly threatening people with an action they are only selectively intent on pursuing, as a clear attempt to intimidate them into paying. This borders on victimisation and harassment that doesn’t follow due process.

Illegal intimidation by a private, profit-seeking body on behalf of a State-owned entity (SANRAL), does not absolve the principal of responsibility or liability and needs to be challenged, regardless of whether ETC follows through with its threats to summons or not.